Ruling on P

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 24247 OF 2024 CASE REF. NO. 202409271000024247 (Arising from the Judgment and Decree of the Resident Magistrate’s Court of Dar es Salaam at Kisutu, Small claim Cause No. 1856 of 2024 by Hon. R.S Mushi, PRM, dated 27th June 2024) OMARI ATHUMAN MOHAMED..................................................... APPELLANT VERSUS RAJESH KUMAR SHIVHRAM AGGARWAL..................................RESPONDENT RULING: 25th Nov & 13th Dec. 2024. KIREKIANO, J.: The appellant herein was aggrieved by the decision of the Resident Magistrate Court of Dar es Salaam at Kisutu in small claims Cause No. 1856 of 2024, delivered on 27th June 2024. When the respondent in this appeal was served with a petition of appeal, Mr. Fredy J. Mushi, counsel for the respondent, raised a point of preliminary objection; thus, “The present appeal is hopelessly time-barred”. 1 This Court, on 8th Nov. 2024, ordered that the hearing of preliminary objection be by way of written submissions. The appellant had the service of Mr. Frank Kilian, while the respondent had the service of Mr. Fredy J. Mushi, both learned advocates. Submitting in support of the preliminary objection, Mr Mushi argued that the appellant might present the memorandum of appeal and time limitation is guided by Item number one of part 2 of the Law of Limitation Act, which requires ninety days to file the memorandum of appeal under such circumstance. He supported this by the case of Bukoba Municipal Council vs New Metro Merchandise (Civil Appeal 374 of 2021) [2022] TZCA 413 (11 July 2022) [Tanzlii] He submitted that the judgement was delivered on the 27th of June 2024, and the appellant presented the Memorandum of Appeal for filing on the 27th of September 2024. It was his submission that a simple mathematical calculation entails that the appeal was presented for filing 92 days after the date of judgment, which is beyond the prescribed time. It is his submission that the appellant has not accounted for the delayed days; hence, the appeal is time-barred. He referred this Court to the case of Khadija Said Mtwanje vs Tanzania Commercial Bank (Formerly Tanzania Postal Bank) & Aziz Yahaya Kai (Miscellaneous Land 2 Application No. 390 of 2023) [2023] TZ HC Land 17020 (6 October 2023) on the need to account each day of delay. Mr. Mushi went on to submit that the time-barred suit affects the jurisdiction of the Court and that the Court cannot adjudicate the matter to which it has no jurisdiction. He cited the case of Shungu Walyene vs Jackson Mwasaka (Misc. Land Appeal No. 4 of 2022) TZHC 13152 (2 September 2022) and the case of Moto Matiko Mabanga vs Ophir Energy Plc & Others (Civil Appeal No. 199 of 2021) (2021) TZCA 599 (22 October 2021) at pg. 13 on the jurisdiction of the Court on the matter which are time barred. The counsel for the respondent submitted that this appeal be rejected because it is time-barred, as it held in the case of Iga vs. Makerere University (1972) EA 65 and other cases of Abdallah Anwar Dossa vs Road Force Ltd & Another (Civil Appeal 30 of 2022) [2022] TZHC 14222 (24 October 2022) [Tanzlii], REX Investment Ltd vs Mkombozi Commercial Bank (Commercial Reference No.8 of 2023) [2023] TZ HC Com. D 278 (18 August 2023) [Tanzlii]. He finally submitted that being the appeal is time-barred, the effect is to dismiss it as per Section 3(1) of the Law of Limitation Act. He, therefore, 3 prayed the preliminary objection to be sustained and the appeal be dismissed with costs. In reply submission, Mr. Kilian responded that the appeal was filed on time as per the electronic filing system and thus the counsel for the respondent failed to interpret the electronic filing system and ended up raising the preliminary objection by westing the precious time of the Court in composing ruling and also imposing some additional cost to the appellant. He submitted that the appeal was filed in this Court via the electronic filing system on 25th September 2024, while the Judgment of the Lower Court was delivered on 27th June 2024. It was his submission that, counting from 27th June 2024 to 25th September 2024, it was ninety days (90); it was his argument that the appeal was filed within the prescribed time. Mr Kilian went on to argue that according to Rule 21(1) of the Judicature and Application of Laws (Electronic Filling) Rules, 2018, a document shall be considered to have been filed if it is submitted through the electronic filing system before midnight EAT. He referred this Court to the case of Moses Gilbert Kitiime & 4 others vs the Registered trustees of EAGT (Revision No. 07 of 2023) TZCHLD on at what time the document is counted to have been filed. He argued 4 that as per the cited provision above and the case law the appeal was filed in this Court of 25th September 2024 and not 27th September 2024 as alleged by the counsel for the respondent. He went on to argue that the respondent is not aware of Rule 21(1) of the Judicature and Application of Laws (Electronic filing) Rules 2018, which recognizes the filing date to be the date when the appeal was submitted online and not the date when the hard copy is received in the Registry office. He prayed the Court to disregard all the cited cases by the counsel for the respondent as their material facts and holdings differ from the case at hand because they are not addressing where the appeal was filed in the electronic filing system in a timely manner. He finally prayed the preliminary objection be overruled with cost. In his rejoinder submission, the counsel for the respondent argued that there is no proof that the appeal was filed electronically on September 25, 2024, as the counsel for the applicant alleged. He submitted that the arguments of the counsel for the applicants are mere statements from the bar. He further argued that he made follow ups via (https://portal.judiciary.go.tz/home) and found out that the appeal was filed on 27th of September, 2024. It was his arguments that the appellant 5 had a duty of notifying the respondent and even the Court on what circumstances transpire in the electronic system and physical document as being presented for filing on 27th of September 2024 and that this could be done by way of deponed affidavit not by mere words. He also relied on the provision of Rule 21(1) of JALA, as cited by the counsel for the appellant, that the date of filing is when the case was filed online, which appears to be 27th September 2024. He distinguished the cited case of Moses Gilbert Kitime and four others (supra), which shows that in this appeal, the electronic records show that the appeal was filed out of time. The counsel for the respondent reiterated his submission in chief that the instant appeal is hopelessly time barred an prayed the appeal be dismissed with cost. I have considered the rival submissions by the parties; the issue for determination is whether the preliminary point of objection raised has merit. There is no dispute, as submitted by the counsel for the respondent, that since the law under Order XXXIX Rule 1 of the Civil Procedure Code does not provide the time limit within which the appellant may present the memorandum of appeal, it is guided by Item number one of part 2 of the Law of Limitation Act which requires the 6 ninety days to file the memorandum of appeal. It is not in dispute on the date when the decision was delivered which is 27th June 2024. Now the question is whether the appeal was filed within 90 days. The point of departure by the parties is when the appeal is considered to have been filed in Court. The argument by the counsel for the respondent is that the appeal was filed in Court on 27th September 2024, even though the hard copy of the documents shows that they were presented for filing on 27th September 2024. Therefore, the computation of 90 days has to end on the same date on which it is 92 days for the date of judgment. The argument by the counsel for the appellant is that the document was submitted online on 25th September 2024. Therefore, the computation of 90 days has to end on 25th September, which is 90 days from the date of judgment. It is not in dispute that the appeal was filed electronically pursuant to the Judicature and Application of Laws Act (Electronic filing) Rules, 2018, particularly under Rule 21. Which provides that: (1) A document shall be considered to have been filed if it is submitted through the electronic filing system before midnight, East African time, on the date it is submitted unless a specific time is set by the court or it is rejected. 7 Going through the records in the E-CMS, the appeal at issue was lodged on 25 September 2024 and admitted on 27 September 2024. As per Rule 21 above, counting from 25 June, when the judgment was delivered, to 25 September, when the appeal was submitted, is 90th days. Going by the date of submission, the appeal was very much in time. I took the same position in the case of Lukolo Company Limited and Another vs Daudi Ndimbo @ Daudi Salvius Ndimbo t/a Darban Aluminium, PVC & Balcons Works, Civil Appeal No. 2647 of 2024, Tanzlii, where the preliminary objection to time limitation was raised under such circumstances, that is, considering the date of submission. As alluded to above, it was upon the appellant to come to court and the incumbent of the admission officer to admit the same in time. Having noted this, I concur with the findings by the counsel for the appellant that this appeal was filed within time. The preliminary objection raised on the point of limitation has no merit, and I will proceed to dismiss it. Cost is in the cause. 8 A J. KIREKIANO. JUDGE. 13.12.2024 COURT: Ruling delivered in the presence of Mr. Denis Ukaka for the respondent and in the absence of the appellant. A. J. KIREKIANO. JUDGE 13 .12.2024 9